Environment Protection Authority v Forestry Corporation of NSW - [2022] NSWLEC 75

Land and Environment Court

New South Wales

Medium Neutral Citation: Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 75
Hearing dates: 16 and 17 December 2021. Consent orders pursuant to s 13.25(1)(d) of the Biodiversity Conservation Act 2016 filed 18 February 2022
Date of orders: 22 June 2022
Decision date: 22 June 2022
Jurisdiction: Class 5
Before: Moore J
Decision:
See orders at [159] to [163]

Catchwords:
SENTENCE - three charges of breaching s 69SA(1) of the Forestry Act 2012 - pleas of guilty by Defendant - agreed facts for sentencing purposes - no potential aggravating factors - consideration of matters mandated by the Biodiversity Conservation Act 2016 - consideration of Defendant’s subjective factors - extent of contrition and remorse - extent of likelihood of reoffending - other subjective factors favourable to Defendant - need for general deterrence - appropriate starting penalty toward (but not at) the low end of the low range for such conduct - penalties of $120,000 for each offence - plea of guilty entered at earliest opportunity - discount of 25% on starting penalties appropriate
TOTALITY AND ACCUMULATION - offences all arising out of same course of conduct - penalties for second and third offences moderated
ADDITIONAL ORDERS - publication order appropriate to be made - minor changes to Prosecutor’s draft - publication order made - proposals for order requiring training of forest‑harvesting employers and contractors in new mapping technology - consent orders settled by the parties for mapping technology training - training orders made by consent

Legislation Cited:
Biodiversity Conservation Act 2016, ss 13.12, 13.23 and 13.25
Criminal Procedure Act 1986, ss 257B and 257G
Crimes Sentencing Procedure Act 1999, ss 3, 21A, 22 and 23
Forestry Act 2012, ss 69SA(1) and 69SB
Protection of the Environment Operations Act 1997, Pt 8.3

Cases Cited:
Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Caralis v Smyth (1988) 65 LGRA 303
Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2017] NSWLEC 132
Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51
Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185
Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54
Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114
Environment Protection Authority v Barnes (2006) NSWCCA 246
Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25
Environment Protection Authority v Waste Recycling and Processing Company (2006) 148 LGERA 299; [2006] NSWLEC 419
Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33
Markarian v R (2005) 229 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v O’Neill (1979) 2 NSWLR 582
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383
Secretary, Department of Planning, Industry and
Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Walden v Hensler (1987)163 CLR 561; [1987] HCA 54

Category: Principal judgment
Parties: Environment Protection Authority (Prosecutor)
Forestry Corporation of NSW (Defendant)
Representation:
Counsel:
Ms G Wright SC (Prosecutor)
Mr I Hemmings SC/Ms J McKelvey, barrister (Defendant)
Solicitors:
Environment Protection Authority (Prosecutor)
Forestry Corporation of NSW (Defendant)

File Number(s): 119558, 119559 and 119560 of 2021
Publication restriction: No

TABLE OF CONTENTS

Introduction

The Corporation’s offending conduct

The Corporation’s guilty pleas

The sentencing hearing

Representation at the sentencing hearing

The Statement of Agreed Facts on Sentence

The Supplementary Statement of Agreed Facts on Sentence

The evidence

The relevant statutory provisions

Introduction
The Forestry Act 2012
The Biodiversity Conservation Act 2016
The Crimes (Sentencing Procedure) Act 1999
The Criminal Procedure Act 1986
The Fines Act 1996

The maximum penalty for the offence

The Biodiversity Conservation Act factors

Introduction
The extent of harm caused
The Prosecutor’s submissions on harm
The submissions for the Corporation
Practical prevention measures
Foreseeability of harm
Control over the causes of the offending conduct
Consideration

Sentencing Procedure Act factors

Introduction
The Corporation’s subjective factors
Introduction
Environmental harm
Prior offences
The Corporation is a good corporate citizen?
The likelihood of reoffending
The Corporation’s prospects of rehabilitation
Contrition and remorse
The Corporation’s guilty plea
The extent of assistance given to the Prosecutor

Characterisation of the Corporation’s offending conduct

Introduction
The Prosecutor's submissions
Submissions for the Corporation
Consideration

Deterrence

Introduction
Specific deterrence
General deterrence

Comparability in sentencing

Introduction
The Prosecutor's submissions
The Corporation’s submissions
Consideration

The appropriate starting sentence

Introduction
The submissions for the Prosecutor
The submissions for the Corporation
Conclusion on the appropriate starting sentences

The Corporation’s guilty pleas

Totality and accumulation

Introduction
The Prosecutor's position
The Corporation’s position
Consideration

A publication order

Diversion of portion of the penalty to a research project

The potential for training orders

Costs issues

Introduction
Environment Protection Authority v Barnes
A moiety order
Introduction
The Prosecutor’s submissions
The Corporation's submissions
Consideration

A general costs order
The Prosecutor’s investigation costs

Orders

Annexure A

Annexure B

Annexure C

Judgment

Introduction

On 29 April 2021, the Environment Protection Authority (the Prosecutor) commenced three criminal prosecutions against the Forestry Corporation of NSW (the Corporation) alleging breaches of s 69SA(1) of the Forestry Act 2012 (the Forestry Act) arising from logging activities carried out by a contractor engaged by the Corporation in Dampier State Forest (the site). The site is located near Bodalla to the south of Batemans Bay.

The Corporation’s offending conduct

On 11 October 2021, a Statement of Agreed Facts (the SOAF) on sentence was filed. The SOAF - the remainder of which is later set out in full - commences by setting out the three offences to which the Corporation has pleaded guilty. This element of the SOAF is set out below:

The defendant, Forestry Corporation New South Wales (Forestry Corporation), is charged with three offences under s 69SA(1) of the Forestry Act 2012 (Forestry Act), in that it failed to comply with requirements of the Integrated Forestry Operations Approval for the Southern Region, Appendix B, being the Threatened Species Licence, (the Licence) in the Dampier State Forest in New South Wales (the Dampier Forest) as follows:
a.   in proceedings 119558 of 2021, an offence of a breach of condition 5.1E(b)(ii) of the Licence, in that, between about 4 April 2019 and about 2 May 2019, at or near the Dampier Forest, it failed to mark the boundary of an environmentally sensitive area as an exclusion zone; (Breach 1)
b.   in proceedings 119559 of 2021, an offence of a breach of condition 5.1(a2)(i) of the Licence, in that on about 2 May 2019 at or near the Dampier Forest, a specified Forestry Activity was carried out in an exclusion zone (Breach 2), and
c.   in proceedings 119560 of 2021, an offence of a breach of condition 5.1(a2)(iii) of the Licence, in that on about 2 May 2019 at or near the Dampier Forest, harvesting machinery was used in an exclusion zone (Breach 3).

The Corporation’s guilty pleas

On 11 June 2021, the first return date for the three summonses, the Corporation entered guilty pleas to the three charges.
The charges to which the Corporation has pleaded guilty are strict liability ones. Mens rea (intention) plays no part and guilt is established by proof of the objective ingredients of the offence (Caralis v Smyth (1988) 65 LGRA 303 at 308). The Corporation’s plea of guilty constitutes admission of all the essential elements of the offence (R v O’Neill (1979) 2 NSWLR 582 at 588).

The sentencing hearing

The sentencing hearing took place on 16 and 17 December 2021, with only a short hearing being necessary on the second day.

Representation at the sentencing hearing

The Prosecutor was represented by Ms G Wright SC. The Corporation was represented by Mr I Hemmings SC and Ms J McKelvey, barrister.

The Statement of Agreed Facts on Sentence

The descriptive terms of the SOAF are somewhat lengthy but are, as a consequence, comprehensive. It is appropriate to set out the entirety of the descriptive elements of the SOAF to understand the relevant factual context of both the Corporation’s offending conduct and of the matters required to be taken into account for present sentencing purposes. The descriptive elements of the SOAF are in the following terms:

INTRODUCTION
1.   The defendant, Forestry Corporation New South Wales (Forestry Corporation), is charged with three offences under s 69SA(1) of the Forestry Act 2012 (Forestry Act), in that it failed to comply with requirements of the Integrated Forestry Operations Approval for the Southern Region, Appendix B, being the Threatened Species Licence, (the Licence) in the Dampier State Forest in New South Wales (the Dampier Forest) as follows:
a.   in proceedings 119558 of 2021, an offence of a breach of condition 5.1E(b)(ii) of the Licence, in that, between about 4 April 2019 and about 2 May 2019, at or near the Dampier Forest, it failed to mark the boundary of an environmentally sensitive area as an exclusion zone; (Breach 1)
b.   in proceedings 119559 of 2021, an offence of a breach of condition 5.1(a2)(i) of the Licence, in that on about 2 May 2019 at or near the Dampier Forest, a specified Forestry Activity was carried out in an exclusion zone (Breach 2), and
c.   in proceedings 119560 of 2021, an offence of a breach of condition 5.1(a2)(iii) of the Licence, in that on about 2 May 2019 at or near the Dampier Forest, harvesting machinery was used in an exclusion zone (Breach 3).

2.   On 11 June 2021, Forestry Corporation entered pleas of guilty to all three charges.
3.   The relevant factual background and a description of the conduct engaged in by Forestry Corporation which led to the commission of the offences are set out below.
BACKGROUND
The Dampier Forest
4.   The Dampier Forest is located near Bodalla, south of Batemans Bay, in New South Wales.
5.   The three offences occurred in Compartment 3133 which is marked on the map included at Tab 1 to this statement of facts.
The Defendant
6. Forestry Corporation is constituted under section 5 of the Forestry Act. It is a State owned corporation.
Statutory framework
7.   Forestry Corporation undertakes Forestry Activities in the Dampier Forest under a framework called the Southern Region Integrated Forestry Operations Approval (Southern IFOA). The Southern IFOA was granted in 1999 under the former Forestry and National Park Estate Act 1998 (FNPE Act).
8. The Forestry Act commenced on 1 January 2013. Clause 10 of Schedule 3 of the Forestry Act provides that an integrated forestry operations approval in force under the FNPE Act immediately before the commencement of the clause is taken to be an integrated forestry operations approval in force under the Forestry Act. The Southern IFOA is therefore an integrated forestry operations approval under the Forestry Act.
9.   The Southern IFOA was revoked and renewed as the Integrated Forestry Operations Approval for the Coastal Region (Coastal IFOA) on 16 November 2018. The Coastal IFOA combines the Upper North East, Lower North East, Southern and Eden region IFOAs. Under the transitional provisions of the Coastal IFOA, forestry operations in the Dampier Forest were required to be carried out in accordance with the Southern IFOA.
10.   The Southern IFOA permits Forestry Corporation to undertake forestry operations in certain State Forests, including the Dampier Forest.
11.   Included at Appendix B to the Southern IFOA are terms of a licence under the Threatened Species Conservation Act 1995. The Licence permits Forestry Corporation to undertake forestry operations in the Dampier Forest, subject to conditions.
12.   At all relevant times, Forestry Corporation was the holder of the Licence, subject to the Coastal IFOA, and was the only entity with a licence to operate in the Dampier Forest. A copy of the Licence is included at Tab 2 to this statement of facts.
RELEVANT CONDITIONS OF THE LICENCE
Key conditions
13.   In relation to Breach 1, at all relevant times, the Licence contained the following relevant conditions:
a.   Condition 5.1E(b)(ii) of the Licence provided as follows:
“A part of the boundary of an environmentally sensitive area must be marked in the field if: ….
(i)   in the case of any other specified Forestry Activity (other than bush fire hazard reduction work), the activity will come within 50 meters of that part of the boundary.”

b.   Condition 5.1E(a) which defined the expression “environmentally sensitive area” provided as follows:
“A reference in this condition (being condition 5.1E) to an environmentally sensitive area is a reference to:
….
•   An exclusion zone referred to in any of the following conditions:
-   …
-   Condition 5.14.2 (“Subterranean Roost Protection”).”

c.   Condition 5.14.2 of the Licence provided as follows:
“5.14.2 Subterranean Roost Protection
Exclusion zones for bats
b)   The following are exclusion zones for bats:
i.   a potential subterranean bat roost,
ii.   if the potential subterranean bat roost is a disused mine shaft, any area within 40 metres of each entrance to the shaft,
iii.   in the case of a potential subterranean bat roost other than a disused mine shaft, any area within 100 metres of each entrance of the roost.”

d.   Condition 5.14.2(h) of the Licence contained the following definitions:
“Disused mine shaft” means a vertical tunnel constructed for the purpose of mining, but no longer used for that purpose.
“Evidence of bats” includes, not only a sighting of a bat or bats, but also guano (either whole or powdered) and the distinctive odour of guano.
“Potential subterranean bat roost” means any of the following:
…
“ii   a disused mine shaft that is at least 4 metres deep and that has one or more of the following features:
•   not all faces of the shaft are visible from the surface,
•   it has ledges that are suitable for bats to roost under,
•   it links to a horizontal shaft that is at least 1 metre long, …”

e. Condition 5.1E(d) of the Licence provided as follows:
“Where a boundary or part of a boundary of an environmentally sensitive area is required to be marked in the field under condition 5.1E(b), this must be done before any trees are felled or killed within 100 meters of that boundary.”

14.   In relation to Breaches 2 and 3, at all relevant times, the Licence contained the following relevant conditions:
a.   Conditions 5.1(a2)(i) and (iii) of the Licence provided as follows:
“The following rules apply to an exclusion zone, except as varied by this condition (being condition 5.1) and conditions 5.1A, 5.1B, 5.1C, 5.1D and 5.20:
(i)   specified Forestry Activities are prohibited in an exclusion zone;
…
(iii)   harvesting machinery is not to be used in an exclusion zone.”

Key definitions
15. At all relevant times, the Licence contained the following definitions:
“Specified Forestry Activities” includes tree felling or killing and construction and operation of snig tracks.
“Exclusion zone” means a protective area where specified Forestry Activities, unless excepted, are prohibited under the terms of this licence.
“Harvesting machine” and “harvesting machinery” mean any mechanical or other harvester, rubber-tyred skidder, bulldozer and any other wheeled or tracked machine that is built to be propelled by a motor that forms part of the machine and that is capable of being used for the cutting or removal of timber.
“Harvesting operations” means tree felling or killing (except miscellaneous forestry operations), construction and operation of log dumps, construction and operation of snig tracks, road construction and road re-opening.

Conditions in relation to mark-up requirements
16.   At all relevant times, condition 5.1E(b) of the Licence required the marking of an environmentally sensitive area in the field if a specified Forestry Activity will come within 50 metres of that part of the boundary. Condition 5.1E of the Licence states that a reference to an environmentally sensitive area includes an exclusion zone referred to in Condition 5.14.2 (“Subterranean Roost Protection”). Condition 5.14.2(b)(ii) in turn requires an exclusion zone to be put in place for a potential subterranean bat roost located in a disused mine shaft encompassing any area within 40 metres of each entrance to the shaft. A potential subterranean bat roost that consists of a disused mine shaft will cease to be a bat exclusion zone if an absence of evidence of bats is established (condition 5.14.2(c)(i)).
Requirement for harvesting plan and operational maps
17.   At all relevant times, condition 3 of the Licence required that a harvesting plan and harvesting plan operational map must be prepared for each harvesting operation. At all relevant times, the Harvest and Haul Plan 52793 for Compartments 3131-3132-3133 dated 24 May 2017 (the Harvest Plan) outlined the requirements for marking boundaries in the Dampier Forest. Specifically, the Harvest Plan provided that a forestry technician must mark a 40m exclusion zone around a disused mine shaft determined to be a subterranean bat roost, using pink tape. The Harvest Plan contained an Operational Map dated 1 March 2019 which showed the location of all Harvest Plan boundaries including exclusion zones at the time of Breaches 1, 2 and 3 (Operational Map (Version 3)).
18.   A copy of the Harvest Plan dated 24 May 2017 and a copy of the Operational Map (Version 3) are included at Tab 3 and Tab 4 to this statement of facts.
HARVESTING OPERATIONS IN THE DAMPIER FOREST
19.   On 1 December 2018 harvesting operations, including timber felling, commenced in the Dampier Forest.
20.   On or around 10 February 2019 the marking-up of the Dampier Forest commenced by Mr Sam De Graaf, a forestry technician employed by Forestry Corporation.
21.   On about 13 February 2019, Mr Jim Potter, Forestry Corporation’s harvest coordinator, attended a briefing in the Dampier Forest with employees of Forestry Corporation’s contractor, Kasun Logging Pty Ltd, and provided them with a copy of the Harvest Plan.
22.   At all relevant times, condition 4.1 (f) of the Licence required Forestry Corporation to record in a register any non-compliances with the conditions of the Licence.
23.   Forestry Corporation operated a web-based application for the planning and supervision of its harvesting operations referred to as MapApp or FCMapReg (MapApp). The MapApp contained information about any non-compliances with the Harvest Plan recorded by Forestry Corporation. Forestry Corporation granted the EPA access to the MapApp.
24.   On 28 May 2019, EPA officers accessed and viewed the information contained in the MapApp when they carried out an inspection of the Dampier Forest.
Identification of a potential subterranean bat roost in a disused mineshaft
25.   On or around 4 April 2019, Mr Sam De Graaf was conducting mark-up in the Dampier Forest when he identified a disused mineshaft on the northern side of the Belowra Road. The disused mineshaft was not previously assessed or marked on the Harvesting Plan Operational Map (Version 3). Mr De Graaf observed a shaft at least three meters deep of which he could not see all sides (Disused Mineshaft).

26.   Based on his observations, including that it was three metres deep and he could not see all sides, Mr De Graaf concluded that he identified a potential subterranean bat roost.
27.   Mr De Graaf informed by radio Mr Jim Potter of his discovery noting it was significant. In response, Mr Potter advised Mr De Graaf that if the Disused Mineshaft met the criteria of a potential bat roost, or if he was unsure, Mr De Graaf should mark it as a safety hazard as a temporary measure, and then contact the ecologist.
28.   In the field, Mr De Graaf then tied pink tape to some trees about 10m from the Disused Mineshaft. He considered the Disused Mineshaft to be a safety hazard.
29.   On or about 4 April 2019, Mr De Graaf contacted Mr Craig Dunne, an ecologist employed by Forestry Corporation. Mr Dunne told Mr De Graaf to mark a precautionary 100m exclusion zone in the MapApp until Mr Dunne was able to assess it. Mr De Graaf then marked a temporary 100m no-go zone in the MapApp.
30.   On about 10 April 2019, Mr Dunne attended the Disused Mineshaft and met Mr Potter onsite. Mr Dunne saw a vertical mineshaft. Based on his observations, Mr Dunne was satisfied that the Disused Mineshaft met the definition of a disused mineshaft and a potential subterranean bat roost in the Licence. At this point, Mr Dunne concluded that the Disused Mineshaft required an exclusion zone of 40m rather than 100m.
31.   On 10 April 2019, the 40m exclusion zone was entered into MapApp as a ‘Tempnogozone’.
32.   On 10 April 2019, Mr Dunne provided instructions to Mr Potter about deploying a song meter in the Disused Mineshaft. A song meter is a programmable acoustic device used for detecting bats. It can be deployed to record ultrasonic sounds. Depending on the range and shape of the frequency of sound, one can determine the species of bats. On 12 April 2019, Mr Potter deployed the song meter adjacent to the Disused Mineshaft.
33.   On 16 April 2019, Mr Dunne returned to the Disused Mineshaft to collect the song meter.
34.   On 17 April 2018, Craig Dunne analysed the data collected from the Disused Mineshaft and was able to confirm the presence of Rhinolophus Megaphyllus, commonly known as the Lesser Horseshoe Bat or Eastern Horseshoe Bat, being a subterranean roosting bat.
35.   Mr Dunne sent an email to Mr Potter containing his findings and confirming the site required a 40m exclusion zone.
36.   Mr De Graaf was not given instructions to return to the Disused Mineshaft and update the marking from the approximate 10m safety hazard zone to a 40m exclusion zone in the field. No one from Forestry Corporation marked a 40m exclusion zone in the field.
37.   Other exclusion zones were marked in the field with pink tape.
Timber harvesting and use of harvesting machinery on 2 May 2019
38.   On 2 May 2019, an employee of Forestry Corporation’s harvesting contractor, Mr Kaelem Barker of Kasun Logging Pty Ltd, was carrying out specified Forestry Activities in the Dampier Forest. He operated a harvesting machine to carry out tree felling on this day.
39.   Mr Barker was working close to two exclusion zones which had previously been marked in the Operational Map (Version 3) and which were marked with pink tape in the field. He followed the pink taped boundary in the field to stay out of the marked exclusion zones while he was harvesting.
40.   Mr Barker also used an iPad, provided by Forestry Corporation, to stay out of the marked exclusion zones and this was the first operation for which he had used an iPad. The iPad contained a map showing the 40m exclusion zone but Mr Barker told EPA investigators that he did not see it on the morning of the incident.
41.   Mr Barker was working in the area around the Disused Mineshaft in the morning. Mr Barker told EPA investigators that when he updated the iPad manually after lunch, Mr Barker realised a 40m exclusion zone applied to the area surrounding the Disused Mineshaft which was not marked in the field.
42.   Mr Barker realised that he had harvested trees within the exclusion zone. He notified Forestry Corporation’s Harvesting Coordinator Mr Potter. On the day of the incident between 11:30 am and 12:30 pm Mr Barker harvested 0.2 hectares within the 0.5 hectare exclusion zone.
43.   Mr Barker notified Mr Potter and informed him that he followed the pink tape in the field and was not paying attention to the iPad while harvesting around the two previously marked exclusion zones marked in the field and on the Operational Map. Mr Barker continued to follow the tape when he entered the exclusion zone around the Disused Mineshaft.
44.   Mr Potter instructed Mr Barker to stop operating and on the same day inspected the area around the Disused Mineshaft. Mr Potter then recorded his observations as a non-compliance in the MapApp and made a record in the MapApp that “40 metre exclusion was only marked on iPad-Mapp App, not in the field.”
45.   On 6 May 2019, Forestry Corporation provided to the EPA via email an updated copy of the operational map dated 6 May 2019 (Operational Map (Version 4)). This document identified the Disused Mineshaft. A copy of this document is included at Tab 5 to this statement of facts.
EPA INSPECTIONS
28 May 2019
46.   On 28 May 2019, EPA officers Mr Sean Joyce, Mr Simon Taylor and Ms Emily Rindfleish travelled to the Dampier Forest to conduct an inspection of the Dampier Forest. The objective of the inspection was to check the compliance of the harvesting operations in the Dampier Forest with the conditions of the Licence. When Mr Joyce accessed the MapApp on an EPA iPad, he identified a non-compliance reported in the MapApp by Forestry Corporation.
47.   In the MapApp, the incident was recorded as follows: “Area or Bat Roost - Mine Shaft Exclusion accidentally harvested. Harvester Operator did not pay attention to IPad MappApp. Operator said he was looking at the […] Pink taped boundary in the field and was harvesting according to that. The original pink tape boundary was as a safety advisory. The 40metre exclusion was only marked on IPad-Mapp App, not in the field.”
48.   Ms Rindfleish opened the Operational Map (Version 4) on the EPA iPad in an app called Avenza, which enabled her to see where she was in the field in relation to the features displayed on the Operational Map (Version 4).
49.   When the EPA officers arrived at the location of the reported non-compliance, they observed evidence that specified Forestry Activities had occurred. They observed cut tree sumps and fallen tree heads.
50.   EPA officers observed what appeared to be a disused mine shaft, being a square shaped hole in the ground surrounded by a raised mound of earth. They were standing at the Disused Mineshaft. Ms Rindfleish could not see to the bottom of the mine shaft. EPA officer Mr Joyce recorded the GPS location of the Disused Mineshaft.
51.   EPA officers observed felled trees within the immediate vicinity of the Disused Mineshaft. EPA officers observed pink tape on 6 trees approximately 10-17m from the Disused Mineshaft and that there was no marking in the field at the 40m boundary.
52.   EPA officers used measuring tape to record the location of each cut tree stump within the 40m exclusion zone and recorded the GPS coordinates of each stump. On this day, EPA officers identified 18 tree stumps within the 40m exclusion zone.
53.   EPA officers then took photographs of the tree stumps and the surrounding area. Photographs provided at Tab 6 show:
a.   Photograph 1 shows the Disused Mineshaft.
b.   Photograph 2 shows one of six trees marked with pink tape.

54.   EPA officers saw disturbance to the surrounding vegetation that appeared to be caused by harvesting machinery and saw evidence of machinery marks.
4 December 2019
55.   On 4 December 2019, EPA officers conducted another inspection of the area surrounding the Disused Mineshaft in the Dampier Forest to record the location of the tree stumps located within the 40m exclusion zone. On this day, EPA officers identified a further 5 tree stumps and measured the diameters of each stump, recording all details on a site inspection record, as well as recording the GPS location of each stump using an iPad and taking photographs of each stump. Photographs taken during the EPA inspection on 4 December 2019 are provided at Tab 7.
56.   EPA officer Mr Taylor identified that the Disused Mineshaft was measured with a tape measure from the surrounding ground height to be 6.0m in depth.
57.   Two maps showing the exclusion zone which was harvested on 2 May 2019 are provided at Tab 8 to this statement of facts.
RELATIONSHIP BETWEEN FORESTRY CORPORATION AND CONTRACTORS
58.   At all relevant times, Forestry Corporation engaged independent contractors, Kasun Logging Pty Ltd, to perform Forestry Activities on its behalf in the Dampier Forest. The independent contractors were engaged by Forestry Corporation under contract.
59.   The contract between Forestry Corporation and Kasun Logging Pty Ltd included clauses to the effect that:
a.   Forestry Corporation agreed to grant the contractor access to the Dampier Forest as an area of supply and the contractor agreed to carry out harvesting operations or haulage operations, including “the selection … and felling of trees, servicing of trees into log products, extraction of log products to log landing, debarking, segregation and stockpiling of log products at the log landing, and ancillary works…” (cl 3.1, 4.1.1, 4.1.2).
b.   The contractor must only harvest log products within areas as specified in harvesting plans (cl 15.2). A “harvesting plan” is defined to mean “a plan prepared by Forestry Corporation which contains site specific information to be used, harvest plan maps and instructions to be followed when carrying out harvesting operations” (cl 3.1). For the purposes of these proceedings, a harvesting plan is the Harvest Plan identified at par [18] above.
c.   Before the commencement of operations from a harvesting unit, Forestry Corporation must ensure harvesting plans are prepared and issued to the contractor (cl 10.5.1). Forestry Corporation prepares and issues the harvesting plans (cl 15.3.1).
d.   The contractor must comply with the harvesting plan (cl 6.1.1(e); 15.3.4) and any lawful direction given to the contractor by a person authorised by Forestry Corporation (6.1.2).
e.   The contractor must at its own cost provide and install an Apple iPad in all machinery used by the contractor to fell trees and the iPad and installation must meet certain specifications. Forestry Corporation must install on the iPad any software (applications) specified by Forestry Corporation provided Forestry Corporation bear the cost of purchasing or developing all specified software (cl 15.5.1 and 15.5.2).
f.   The contractor must ensure the Apple iPad and GPS receiver are operating and recording such data as is required by Forestry Corporation from time to time whenever its machinery is felling trees (cl 15.5.5).
g.   The contractor must locate some or all of the harvest boundaries referred to in the relevant harvesting plan using GPS equipment, including hand-held equipment (cl 15.12.1). Forestry Corporation must provide harvesting plans in an electronic form depicting boundaries that will allow the harvest boundary location to be carried out by the contractor (cl 15.12.2).

EASTERN HORSESHOE BAT
60.   In April 2019, Forestry Corporation determined that the Disused Mineshaft was a potential subterranean bat roost used by the Eastern Horseshoe Bat.
61.   Forestry Corporation identified several other potential subterranean roosts of the Eastern Horseshoe Bat in the vicinity of the Disused Mineshaft in the period prior to May 2019, including in a bat tunnel some 200m north of the Disused Mineshaft.
CAUSES OF THE INCIDENT
62.   The incident occurred due to:
a.   inconsistent mark-up practices within the Dampier Forest, and a failure to mark the exclusion zone in the field as required.
b.   erroneously using pink tape as safety advice around the Disused Mineshaft contrary to Forestry Corporation’s Standard Operating Procedures, which required pink tape to be used to mark an exclusion zone in the Dampier Forest. The harvesting operator did not observe the 40m exclusion zone marked in the MapApp as set out in [31] and the harvesting operator entered the exclusion zone in harvesting machinery around the Disused Mineshaft and felled trees.

63. Forestry Corporation was aware of the requirement to identify and protect an exclusion zone around a mineshaft that meets the requirements of a subterranean bat roost.
MATTERS TO BE CONSIDERED UNDER S 13.12 OF THE BIODIVERSITY CONSERVATION ACT 2016
64. Section 13.12 of the Biodiversity Conservation Act 2016 (which applies by virtue of s 69SB of the Forestry Act) provides:
“(1) In imposing a penalty for an offence against this Act or the regulations (or a native vegetation offence), the court is to take into consideration the following (so far as they are relevant)—
(a) the extent of the harm caused or likely to be caused by the commission of the offence,
(b) the practical measures that may be taken to prevent, control, abate or mitigate that harm,
(c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence,
(d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence,
(e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee,
(f) whether the offence was committed for commercial gain.

(2) The court may take into consideration other matters that it considers relevant.”

Environmental harm: s 13.12(1)(a)
The parties have not agreed the facts relating to environmental harm at this time.
Practical measures to prevent, control or mitigate that harm: s 13.12(1)(b)
65.   Forestry Corporation deployed a suitably qualified bat surveyor using appropriate methods, including bat call detection, and marked a 40m no go zone in MapApp. Forestry Corporation took steps after the offences to mark the boundary of the exclusion zone.
66.   The harm may have been prevented or controlled by Forestry Corporation if Forestry Corporation marked the boundary of an environmentally sensitive area in the field in accordance with the conditions of the Licence, so that any specified Forestry Activities did not come within the prescribed boundary.
Foreseeability of harm: s 13.12(1)(c)
67.   It was foreseeable to Forestry Corporation that failing to properly mark the boundary of the environmentally sensitive area in the field, during a time when the procedures under the IFOA were switching from physical marking to virtual marking of exclusion zones on the MapApp, could have caused confusion for harvesting operators and could have resulted in harvesting occurring in an exclusion zone.
Control: s 13.12(1)(d)
68.   Whilst the timber felling was conducted by contractors, the cause of these offences was within Forestry Corporation’s control in that Forestry Corporation determined the Harvest Plan and updated the Operational Map (Version 3) and Operational Map (Version 4) and provided instructions to contractors about where to conduct Forestry Activities in the Dampier Forest, which the contractors were contractually required to follow.
MATTERS TO BE CONSIDERED UNDER SECTION 21A OF THE CRIMES (SENTENCING PROCEDURE) ACT 1999
Prior convictions: s 21A(2)(d)
69.   Forestry Corporation has previous convictions for environmental offences. Forestry Corporation been convicted of the following offences in the Land and Environment Court:
a.   On 18 December 1998, Forestry Corporation was convicted for three offences of breach of licence arising from logging operations in Colymea State Forest.
b.   On 6 December 2004, Forestry Corporation was convicted of one offence of polluting waters in Chichester State Forest.
c.   On 8 June 2011, Forestry Corporation was convicted of one offence of breach of licence arising from bush fire hazard reduction burning in an exclusion zone of Nullica State Forest.
d.   On 10 July 2013, Forestry Corporation was convicted for one offence of polluting waters and one offence of breach of licence, arising from hazard reduction burns in Mogo State Forest.
e.   On 5 October 2017, Forestry Corporation was convicted of one offence of breach of licence arising from its failure to conduct a thorough search for rocky outcrops in Glenbog State Forest.

70. In the past five years, twenty four official cautions and thirteen penalty notices have been issued to Forestry Corporation by the EPA.
Assistance to authorities: s 21A(3)(m)
71. FCNSW has cooperated with the EPA’s investigation.

The SOAF refers to various documents that were attached to it. These are listed in the “Index of tabs” appended to the SOAF. That index is in the following terms:

Tab

Description

1.

Map of compartments 3131, 3132 and 3133 of the Dampier Forest

2.

Licence (version in force at the time of the three offences)

3.

Harvest Plan dated 24 May 2017

4.

Operational Map (Version 3) dated 1 March 2019

5.

Operational Map (Version 4) dated 6 May 2019

6.

Photographs of the EPA inspection of 28 May 2019

7.

Photographs of the EPA inspection of 4 December 2019

8.

Maps of the exclusion zone which was harvested on 2 May 2019 in compartment 3133

It is to be noted that the documents referred to in the body of the SOAF, and listed in the above index, comprise a further 141 pages. It is not necessary to reproduce them. It is appropriate to reproduce, as Annexure A, one of the photos from the Prosecutor's inspection on 28 May 2019, being a photograph which shows the disused mineshaft referred to in the SOAF.

The Supplementary Statement of Agreed Facts on Sentence

Although the Prosecutor and the Corporation had not, initially, reached agreement on a common position to be advanced during the sentencing hearing as to the extent of the environmental harm arising from the Corporation's offending conduct, subsequent pre-trial discussions between the parties reached agreement on the terms of a Supplementary Statement of Agreed Facts on Sentence (the SSOAF) dealing with this. As with the SOAF, it is appropriate to reproduce in full the SSOAF. This document was in the following terms:

1.   These Supplementary Agreed Facts on Sentence adopt the same defined terms as set out in the Agreed Facts on Sentence filed 11 October 2021.
DISUSED MINESHAFT
2.   On 10 April 2019, Forestry Corporation determined that the Disused Mineshaft in question met the definition of a “potential subterranean bat roost” pursuant to the Licence meaning it was at least 4m deep. The precise dimensions of the Disused Mineshaft or how many Eastern Horseshoe Bats were using the roost were not determined by Forestry Corporation at that time.
3.   On 28 and 29 September 2021, Ms Amy Rowles of Corymbia Ecology, ecology expert engaged by Forestry Corporation, conducted a site inspection.
4.   Based on her observations, there are four other disused mineshafts in the vicinity of the Disused Mineshaft in question site and the five mine shafts cover a distance of 150m. All meet the criteria in the Licence for a potential subterranean bat roost. Of the five disused mineshafts, three have a horizontal adit extending off the vertical shaft, including the Disused Mineshaft in question. Two mineshafts were too deep and narrow to determine whether a horizontal adit is present.
5.   There is a small horizontal tunnel located 225m north of these disused mineshafts although it is partially filled with soil and has dense regrowth vegetation around its entrance and evidence of wombat activity in the tunnel, thereby reducing its suitability to be used by bats. A diagram depicting the relative location of the mineshafts and tunnel is at Diagram 1 below.

Diagram 1: Approximate location of the five disused mineshafts and bat tunnel at the site. The Disused Mineshaft is Shaft 1. Source: Expert report of Amy Rowles dated 1 November 2020, p 7.

6.   Approximately four kilometres north of the site is a long solid rock horizontal tunnel with Eastern Horseshoe Bats and large guano deposits.
7.   The Disused Mineshaft in question is 7.5m deep, with an opening at the top of the spoil mound of 4.3 x 3.7m and narrowing to a vertical rock shaft of 1.3m x 2.3m. An image of the opening of the Disused Mineshaft, taken on 28 September 2021, is at Tab 1 of this statement of facts.
8.   The Disused Mineshaft contains a horizontal adit extending in a north-west direction at the base of the shaft.
9.   During an inspection at dusk on 28 September 2021, Ms Rowles observed an Eastern Horseshoe Bat circling in the top section of the shaft but did not see whether it had exited from the horizontal adit. On 29 September 2021, Ms Rowles observed one Eastern Horseshoe Bat exiting and re-entering the horizontal adit.
EASTERN HORSEHOE BAT
10.   The Eastern Horseshoe Bay is not listed as a threatened species under the Biodiversity Conservation Act 2016 or under its predecessor, the Threatened Species Conservation Act 1995.
11.   The population of the Eastern Horseshoe Bat in the Dampier Forest is likely to engage in nightly movements to forage within a few kilometres adjacent to their roost location but also, over the course of months, to move between a network of suitable roosts, perhaps up to 30km distant. The occurrence of the Eastern Horseshoe Bat in southern NSW is constrained by the presence of subterranean roosts with suitable dimensions, such as disused mineshafts, a microclimate of high humidity and suitable foraging habitat of about two kilometres of the roost. The species depends on a network of roost sites and does not reside permanently at one roost site.
12.   Populations of this species in central and southeast NSW are thought to have declined over the past few decades, however, it is not known if the population in the Dampier Forest, or southern NSW in general, is declining, stable or increasing. An image of Eastern Horseshoe Bat is included at Tab 2 to this statement of facts.
13.   Trees were felled over an area of 0.2ha out of a 0.5ha exclusion zone. This had the potential to significantly increase solar radiation and increased desiccation of the forest stand. Solar radiation on the mouth of the mineshaft from the North would have increased due to the tree removal in this direction, however, this would have been lessened by trees within 16m of the shaft being retained. This has the potential to impact the temperature and wind profile within the exclusion zone and alter the microclimate of the Disused Mineshaft. In light of the depth of the horizontal adit from the surface and measurements taken on 28-29 September 2021 (by an ecologist retained by the defendant) of the temperature and humidity at the base of the shaft, any impact on the vegetation is not likely to change the temperature and humidity of the horizontal adit to any significant degree.
14.   Noise and possible vibration arising from logging machinery and tree felling had the potential to disturb Eastern Horseshoe Bats roosting in the Disused Mineshaft by arousing Eastern Horseshoe Bats from their daytime torpor, causing bats to fly around or exit the roost during the daytime, thereby reducing their energy levels and increasing predation risk from diurnal bird predators. There was potential for collapse of the roost, obstruction of the roost entrance from vegetation or a change in vegetation structure caused by the felling, but there is no evidence that any of these occurred.
15.   Exclusion zones surrounding subterranean roost entrances serve to maintain the microclimate within the roost by preventing changes to the forest profile. This is significant for the Eastern Horseshoe Bat, compared to other cave roosting bat species in the region, for which very high humidity, typically higher than 85%, is considered essential for the survival of the species. It is not possible to know if the microclimate of the mineshaft was altered to some degree as a result of the clearing (without a before and after experiment or study).
ENVIRONMENTAL HARM: s 13.12(1)(a)
16.   It is likely the logging of trees on 2 May 2019 in the exclusion zone around the Disused Mineshaft caused some harm to any Eastern Horseshoe Bats that were roosting in the adit at the time, due to the noise and vibration in the exclusion zone from the tree felling and use of machinery. The extent of harm is considered to be minor due to:
a.   the time of year that the clearing occurred which was not during winter or the maternity season for any microbat species, thus any energy loss for any bats flying in, around or out of the roost, would not have been significant due to suitable weather conditions for foraging, most likely occurring at night;
b.   the short length of time the disturbance took place;
c.   the presence of other known roost sites within 150m of the Disused Mineshaft providing alternative roosting sites; and
d.   the immediate area around the roost entrance remaining intact.

17. A loss of dozen or more bats would represent a potentially significant incremental increase in overall mortality rates for the local population. There is no evidence that any bats were lost.

The evidence

The SOAF was tendered, becoming Exhibit A, and the SSOAF was also tendered, becoming Exhibit B.
Two affidavits were read on behalf of the Corporation. These were:

An affidavit of 4 November 2021 deposed by Mr Anshul Chaudhary, the Corporation’s Chief Executive Officer;

An affidavit of 4 November 2021 deposed by Mr Lee Blessington, the Corporation’s Acting Senior Manager Production South.

Neither Mr Chaudhary nor Mr Blessington were required for cross-examination.
A folder of documentary material exhibited to Mr Blessington’s affidavit became Exhibit 1.

The relevant statutory provisions

Introduction

Elements of five statutes require to be noted in these proceedings. They are the Forestry Act; the Biodiversity Conservation Act 2016 (the Biodiversity Conservation Act); Crimes (Sentencing Procedure) Act1999 (the Sentencing Procedure Act); the Criminal Procedure Act1986 (the Criminal Procedure Act) and the Fines Act 1996 (the Fines Act).

The Forestry Act2012

The charges against the Corporation have been laid pursuant to s 69SA(1) of the Forestry Act. This provision is in the following terms:

69SA Offence of contravening requirements of approval
(1) A person who contravenes a requirement imposed by an integrated forestry operations approval is guilty of an offence.

Maximum penalty—
(a)   …, or
(b)   for any other offence—
(i)   in the case of a corporation—$2 million, or
(ii)   in the case of an individual—$500,000.

(2)   This section applies to requirements (however described) imposed on the Forestry Corporation or on persons carrying out forestry operations and whether arising before, during or after the carrying out of forestry operations.
(3)   The higher maximum penalty under this section does not apply unless—
(a)   the prosecution establishes (to the criminal standard of proof) that the offence was committed intentionally and caused or was likely to cause significant harm to the environment, and
(b)   the court attendance notice or application commencing the proceedings alleged that those factors applied to the Commission of the offence.
If any such allegation in the notice or application is not established by the prosecution, the lower maximum penalty under this section applies (whether or not the notice or application is amended).

(4) …

The Forestry Act, by s 69SB, also requires consideration of matters set out in s 13.12 of the Biodiversity Conservation Act. This provision of the Forestry Act is in the following terms:

69SB   Enforcement functions of EPA
(1)   The Environment Protection Authority has the function of monitoring the carrying out of forestry operations to which this Part applies and the function of enforcing compliance with the requirements of integrated forestry operations approvals.
(2)   The Biodiversity Conservation Act 2016 contains provisions relating to the enforcement of this Part, and accordingly—
(a)   functions under Part 6 of this Act (Investigations and enforcement powers) are not exercisable in relation to any matter arising under this Part, and
(b)   proceedings for an offence against this Part or the regulations under this Part cannot be instituted under Part 7 of this Act (Criminal proceedings and related matters) and that Part does not apply to any such alleged offence.

(3) In this section—
enforcing compliance includes instituting criminal or civil proceedings.
monitoring includes investigating and reporting.

The Biodiversity Conservation Act2016

As can be seen from paragraphs 64 to 68 of the SOAF, the matters that are set out in s 13.12 of the Biodiversity Conservation Act are required to be considered in these sentencing proceedings by virtue of s 69SB of the Forestry Act set out above. This provision of the Biodiversity Conservation Act is in the following terms:

13.12   Sentencing for offence—matters to be considered
(1)   In imposing a penalty for an offence against this Act or the regulations (or a native vegetation offence), the court is to take into consideration the following (so far as they are relevant)—
(a)   the extent of the harm caused or likely to be caused by the Commission of the offence,
(b)   the practical measures that may be taken to prevent, control, abate or mitigate that harm,
(c)   the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the Commission of the offence,
(d)   the extent to which the person who committed the offence had control over the causes that gave rise to the offence,
(e)   whether, in committing the offence, the person was complying with orders from an employer or supervising employee,
(f)   whether the offence was committed for commercial gain.

(2) The court may take into consideration other matters that it considers relevant.

In addition, the Biodiversity Conservation Act sets out, in s 13.25, a range of additional order‑making powers, of which three elements are relevant to the sentencing outcomes in these proceedings. The relevant elements of the provision are set out below:

13.25   Additional orders
(1)   Orders The court may do any one or more of the following—
(a)   order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its consequences and any other orders made against the person,
(b)   …,
(c)   …,
(d)   …,
(e)   order the offender to pay a specified amount to a specified organisation (including into the Biodiversity Conservation Fund), for the purposes of a specified project for the restoration or enhancement of the terrestrial environment,
(f)   order the offender to attend, or to cause an employee or employees or a contractor or contractors of the offender to attend, a training or other course specified by the court,
(g)   order the offender to establish, for employees or contractors of the offender, a training course of a kind specified by the court,
(h)   …

The Crimes (Sentencing Procedure) Act 1999

A number of provisions of the Sentencing Procedure Act require consideration. The first of these is s 3A, the provision that sets out the objects of the Act, explaining the purposes for which sentencing is undertaken. This provision is in the following terms:

3A   Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows:
(a)   to ensure that the offender is adequately punished for the offence,
(b)   to prevent crime by deterring the offender and other persons from committing similar offences,
(c)   to protect the community from the offender,
(d)   to promote the rehabilitation of the offender,
(e)   to make the offender accountable for his or her actions,
(f)   to denounce the conduct of the offender,
(g)   to recognise the harm done to the victim of the crime and the community.

The second elements of the Sentencing Procedure Act are those contained in s 21A of that Act, which are relevant to this offending conduct or to the Corporation. The provision contains, in s 21A(2), those elements which can, if proved beyond reasonable doubt, give rise to a finding that the offending conduct was carried out in circumstances of aggravation. It is to be noted that, with respect to the three charges to which the Corporation has pleaded guilty, the Prosecutor does not suggest that any factors of aggravation arise.
The provision also contains, in s 21A(3), a range of subjective factors potentially applicable to the Corporation that require to be considered where relevant. The relevant elements of s 21A(3) are set out below:

21A   Aggravating, mitigating and other factors in sentencing
(1)   ...
(2)   ...
(3)   Mitigating factors
The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a)   the injury, emotional harm, loss or damage caused by the offence was not substantial,
(b)   ...,
(c)   ...,
(d)   ...,
(e)   the offender does not have any record (or any significant record)   of previous convictions,
(f)   the offender was a person of good character,
(g)   the offender is unlikely to re-offend,
(h)   the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,
(i)   the remorse shown by the offender for the offence, but only if:
(i)   the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii)   the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

(j)   ...,
(k) a plea of guilty by the offender (as provided by section 22 or Division 1A),
(l)   ...
(m) assistance by the offender to law enforcement authorities (as provided by section 23),
(n)   ...

The final element of the Sentencing Procedure Act engaged by these proceedings is s 22, a provision which mandates that I have positive regard to the entry by the Corporation of its guilty plea and the utilitarian value that the entry of that plea has had for the administration of justice. This provision is in the following terms:

22   Guilty plea to be taken into account for offences not dealt with on indictment
(1)   In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:
(a)   the fact that the offender has pleaded guilty, and
(b)   when the offender pleaded guilty or indicated an intention to plead guilty, and
(c)   the circumstances in which the offender indicated an intention to plead guilty,
and may accordingly impose a lesser penalty than it would otherwise have imposed.

(1A)   A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
(2)   ...
(3)   ...
(4)   ...
(5)   …

The Criminal Procedure Act 1986

The costs-ordering provisions contained in ss 257B and 257G of the Criminal Procedure Act are engaged in order to permit me to order that the Corporation is to pay the Prosecutor's costs of these proceedings. It is not necessary to reproduce the terms of any provisions of this legislation; it is sufficient to note that they provide a proper statutory foundation for me making an appropriate costs order.

The Fines Act 1996

Section 122 of the Fines Act permits me to order a moiety (50%) of any fines which I impose on the Corporation are required to be paid to the Prosecutor. It is not necessary to reproduce the terms of the provision, it is sufficient to note its effect.

The maximum penalty for the offence

The maximum penalty for each of these offences is provided for by s 69SA(1)(b) of the Forestry Act - being, relevantly, $2,000,000.
The maximum available penalty is to be taken as being the legislature’s understanding and reflection of contemporary community standards concerning the offences involved (Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 at [33]). The size of the penalty also “indicates the gravity of the offence as perceived by the community”: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 (Camilleri’s Stock Feeds) at 698.
The maximum penalty is significant in determining the objective seriousness of the offence: Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 at [57]. The maximum penalty demonstrates the seriousness with which the offence charged is viewed (Camilleri's Stock Feeds also at 698).

The Biodiversity Conservation Act factors

Introduction

I have earlier set out the terms of s 13.12 of the Biodiversity Conservation Act, a provision which sets out factors that are required to be considered by me in these sentencing proceedings. Only the first four of the six elements set out in that provision are here relevant. The statutory elements can be summarised as being:

The extent of any harm caused by the Corporation’s offending conduct;

Practical measures available to the Corporation to prevent its offending conduct;

The foreseeability of any harm which might be caused by the Corporation’s offending conduct; and

The extent to which the Corporation had control over the causes of its offending conduct.

Agreement has been reached between the Prosecutor and the Corporation as to the position to be advanced with respect to each of these elements.

The extent of harm caused

The Prosecutor and the Corporation set out, in paragraphs 16 and 17 of the SSOAF, an agreed position explaining why the harm should be considered as being minor. These paragraphs are repeated for the purpose of addressing this provision:

16.   It is likely the logging of trees on 2 May 2019 in the exclusion zone around the Disused Mineshaft caused some harm to any Eastern Horseshoe Bats that were roosting in the adit at the time, due to the noise and vibration in the exclusion zone from the tree felling and use of machinery. The extent of harm is considered to be minor due to:
a.   the time of year that the clearing occurred which was not during winter or the maternity season for any microbat species, thus any energy loss for any bats flying in, around or out of the roost, would not have been significant due to suitable weather conditions for foraging, most likely occurring at night;
b.   the short length of time the disturbance took place;
c.   the presence of other known roost sites within 150m of the Disused Mineshaft providing alternative roosting sites; and
d.   the immediate area around the roost entrance remaining intact.

17. A loss of dozen or more bats would represent a potentially significant incremental increase in overall mortality rates for the local population. There is no evidence that any bats were lost.

The Prosecutor’s submissions on harm

The Prosecutor submitted (Transcript 16 December 2021, page 9, lines 6 to 35):

There could have been much more significant harm involving the types of outcomes which are referred to in the supplementary facts, such as blocking of the entrance or felling of more trees and closer to the disused mineshaft leading to changes to the microclimate. This species requires very high humidity, typically higher than 85% for its survival. That risk was real and not remote given that the harvester had no idea it was an exclusion zone. There was at least a 10 metre protection in place but that would not mitigate or entirely mitigate those kinds of risk in this case.
The licence itself recognises the risk of harm because it provides an exclusion zone for a “potential subterranean bat roost” and the definition of “potential subterranean bat roost”, which is found in condition 5.14.2 does not require the presence of the animal itself, it focuses upon physical features of the shaft, the diameter, the length of the cave, the faces of the ledges and refers to there being a need for a horizonal shaft that is at least one metre home. So there is recognition and a precautionary approach taken in the licence to protecting potential caves and mineshafts that can be used by this species, and moreover the type of exclusion zone relevant here applies to various types of bat. It doesn’t require one species be capable of using this type of subterranean bat roost, it is not limited to this species, it applies to any type of species that may use it.

So while it is put by the defendant that the Eastern Horseshoe Bat is at the lower end of the scale of protection, because it is not recognised as a threatened species of microbat, that fact does not justify under the licence a less protective response as one can see from the terms of the licence. So I do rely on the terms of the licence as well as the risk of more significant harm based on the facts here of having only a 10 metre protection zone in effect, which could have resulted in much more significant harm such as blocking of the entrance and other types of harm.

However, the Prosecutor submitted that, although the actual harm was minor, the risk of harm was more significant and that this was recognised by the requirements of the Corporation’s licence to provide exclusion zones for potential subterranean bat roosts with such exclusion zones arising not from the presence of the bats themselves, but from the physical features that could potentially create a roost for them.
The Prosecutor said, in the written submissions at paragraph 42:

42. The particular species affected (the Eastern Horseshoe Bat) was not classified as a threatened species under any legislation; however, the Licence recognised the potential for its habitat to be threatened species habitat and the need to protect it. The requirement for protection of a “potential subterranean bat roost” did not turn on the type of species using the roost (by reason of the definition in the Licence in condition 5.14.2). For a disused mineshaft, it would only be if there was no record associated with the rooster the bat of a species that users roosts of that kind and an absence of evidence of bats within the roost established by an inspection survey that the potential roost would cease to be a bat exclusion zone under the Licence (cf condition 5.14.2(c)). In the EPA's submission, nothing turns on the fact that the Eastern Horseshoe Bat was not classified as a threatened species.

The Prosecutor also submitted, although the actual harm to the bats was minor (albeit the risk of harm was not to be so categorised in the Prosecutor’s submission), there were two other elements of actual harm that require to be considered. The first of these was that 23 trees were cut down from an area where tree‑harvesting was not permitted. In addition, the failure to abide by the terms of the Corporation’s licence also effected harm to the integrity of the regulatory system which operated to protect the environment during forestry operations.
In this regard, the Prosecutor accepted that the bat species potentially involved, the Eastern Horseshoe Bat, was not recognised as being a threatened species, but submitted that this did not lessen the obligation created by the Corporation’s licence to protect potential habitats for that animal.

The submissions for the Corporation

In his written submissions, Mr Hemmings responded to the above proposition advanced by the Prosecutor (concerning the status of the Eastern Horseshoe Bat), doing so, at paragraph 42 of his written submissions, in the following terms:

42. Contrary to the Prosecutor's submissions at 42, it is submitted that the fact that the Eastern Horseshoe Bat is not classified as a threatened species is a matter that weighs in the assessment of objective seriousness of this offence as an element of the consideration of harm. It is clear that if a species harm during offence was endangered, that would be objectively more serious than if that were not the case. The environmental law generally provides greater protection to those species are threatened compared to those that are not. The Eastern Horseshoe Bat is at the low protection end of the scale given it is not identified as threatened. Of course, this does not mean that the species is unimportant, but its relative vulnerability compared to other species must be considered when assessing the seriousness of the offence.

In Mr Hemmings oral submissions, he addressed the three matters set out above as having been submitted for the Prosecutor, saying (Transcript 16 December 2021, page 19, line 47 to page 20, line 7):

… there is nothing in the facts to tell you what sort of trees they were or whether they were part of a community or whether there is actually any significance to the trees at all because we are allowed to log those trees. What we were not allowed to do is log the trees within the exclusion zone and the purpose of the exclusion zone is to protect the subterranean bat roost not the trees. So a consideration of aggravation in terms of harm for any of the three offences that relate to the fact of the removal of the trees is something that reflects itself - is something which the Court of course takes into account that there were 23 trees removed and frankly there is not much more that the Court would allocate to that consideration.

He then submitted that there was nothing in the SOAF that would lead to a conclusion that there was any actual or likely change to the habitat of the bat to cause harm to that species. He also submitted that, in a proper understanding of the relevant provisions of the Biodiversity Conservation Act, potential change to the habitat of the bat was not “harm” to that animal for the purposes of the legislation. With respect to potential risk of harm as a consequence of the undertaking of the forestry machinery, he submitted that the risk of this was low and, if that made it necessary for the bats to leave such a roost, there were other alternative roosts within 150 metres of the site to which the bats could fly. In light of these factors, Mr Hemmings submitted that the actual harm and the risk of harm were at the very low end of the scale.
With respect to the damage to the integrity of the regulatory system, Mr Hemmings accepted that there was an element of harm to that system by the Corporation’s offending conduct. However, he submitted that, for this to be a matter of significance in sentencing the Corporation (Transcript 16 December 2021, page 21, line 42 to page 22, line 3):

There needs to be something more than just the breach. If for example what was able to be demonstrated was a deliberate or negligent or flagrant breach of the regulatory scheme which that conduct identified that it gives rise to a different type of harm to the regulatory scheme, it’s not the breach, it’s the fact that there’s been the deliberate disregard of it. Then they may be circumstances in which the Court can then in its synthesis can combine those various different elements. None of those circumstances arise in this matter. My client did find the potential subterranean roost, tried to mark it in the manner in which it implemented the marking of the exclusion zone, was unsuccessfully carried out. There is no room in this matter for the contribution in any substantive way to the determination of penalty for something described as a harm to the regulatory system.

Practical prevention measures

The Prosecutor and the Corporation set out, in paragraphs 65 and 66 of the SOAF, an agreed position on how the harm might have been prevented. These paragraphs are repeated for the purpose of addressing this provision:

65. Forestry Corporation deployed a suitably qualified bat surveyor using appropriate methods, including bat call detection, and marked a 40m no go zone in MapApp. Forestry Corporation took steps after the offences to mark the boundary of the exclusion zone.
66. The harm may have been prevented or controlled by Forestry Corporation if Forestry Corporation marked the boundary of an environmentally sensitive area in the field in accordance with the conditions of the Licence, so that any specified Forestry Activities did not come within the prescribed boundary.

Foreseeability of harm

The Prosecutor and the Corporation set out, in paragraph 67 of the SOAF, an agreed position concerning the foreseeability of harm potentially arising from the Corporation’s offending conduct. This paragraph is repeated for the purpose of addressing this provision:

67. It was foreseeable to Forestry Corporation that failing to properly mark the boundary of the environmentally sensitive area in the field, during a time when the procedures under the IFOA were switching from physical marking to virtual marking of exclusion zones on the MapApp, could have caused confusion for harvesting operators and could have resulted in harvesting occurring in an exclusion zone.

Control over the causes of the offending conduct

The Prosecutor and the Corporation set out, in paragraph 68 of the SOAF, an agreed position concerning the Corporation’s control over the matters giving rise to its offending conduct. This paragraph is repeated for the purpose of addressing this provision:

68. Whilst the timber felling was conducted by contractors, the cause of these offences was within Forestry Corporation’s control in that Forestry Corporation determined the Harvest Plan and updated the Operational Map (Version 3) and Operational Map (Version 4) and provided instructions to contractors about where to conduct Forestry Activities in the Dampier Forest, which the contractors were contractually required to follow.

Consideration

All of the above factors need to be considered together, as an amalgam, to assess how the relevant elements of s 13.12 of the Biodiversity Conservation Act should be regarded for the purposes of sentencing the Corporation for the three charges to which it has pleaded guilty.
In this regard, I am satisfied that, although the actual harm was (as agreed) minor, the combination of the risk of harm and the damage to the integrity of the regulatory system established through the licensing regime to which the Corporation was subjected (and which it breached) means that, contrary to Mr Hemmings’ submissions, it is not appropriate to regard all of these “harm” matters, when bundled up, to be regarded as being at the low end of the low range as submitted by Mr Hemmings. How the overall assessment of the objective elements of the Corporation’s offending conduct is to be characterised is dealt with in a later section of this decision.

Sentencing Procedure Act factors

Introduction

Before turning to the various matters arising pursuant to s 21A(3) of the Sentencing Procedure Act potentially here engaged, it is appropriate to make a brief general observation concerning how these matters are to be approached. This is necessary because the burden of proof differs depending on the nature of that which requires consideration.
For the purposes of establishing any potential factor of aggravation, I must conclude that such factor is proved beyond reasonable doubt. On the other hand, for favourable subjective factors applicable to the Corporation (including those matters potentially arising from s 21A(3)), it is only necessary for the Corporation to establish that factor on the balance of probabilities (R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (R v Olbrich) at 281).

The Corporation’s subjective factors

Introduction

This section of my consideration requires an analysis of those matters that relate to the Corporation itself, rather than to the offending conduct that gave rise to the charge to which it has pleaded guilty. For any mitigating factor to be engaged, the Corporation must establish a proper basis for it on the balance of probabilities (R v Olbrich).

Environmental harm

The first relevant factor (s 21A(3)(a)) is the extent of the harm caused by the Corporation’s offending conduct.
Preston CJ set out, under the heading “Objective harmfulness of offence”, in Environment Protection Authority v Waste Recycling and Processing Company (2006) 148 LGERA 299; [2006] NSWLEC 419 (Waste Recycling) (at [145]), a number of principles. The first of them, relevant in these proceedings, is that:

Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account.

I have earlier addressed the issue of harm (including the potential for harm) in my earlier consideration of the prescribed matters in s 13.12 of the Biodiversity Conservation Act. It is not necessary here to repeat that consideration.

Prior offences

The second relevant factor (s 21A(3)(e)) is whether the Corporation has “any record (or any significant record) of previous convictions”.
The extent to which the Corporation has been convicted in the past is a matter of relevance in my sentencing consideration. The Corporation’s prior convictions have been set out in the SOAF at paragraph 69. As there noted, the Corporation has been convicted five times since December 1988, in this Court, for offences arising out of its forestry operations. The nature of the offences disclosed in the SOAF shows that they covered a variety of forestry operation activities.
At paragraph 70 of the SOAF, it was also noted that the Corporation has received 24 official cautions and been issued with 13 penalty notices by the Prosecutor over the past five years. However, I am satisfied, in the context of the requirement in s 21A(3)(e), that I have regard to the Corporation’s “record … of previous convictions” that I should not pay heed to the cautions or penalty notices issued to the Corporation by the Prosecutor.
The nature and extent of these convictions is a factor to be weighed in my sentencing consideration.

The Corporation is a good corporate citizen?

The Prosecutor also addressed, in anticipation, the submission advanced on behalf of the Corporation that I should find that it was of good character. The Prosecutor submitted (Transcript 16 December 2021, page 10, lines 37 to 48):

A submission is made that your Honour would find that the defendant is of good character, having regard to all the circumstances. I submit that submission is not open given that it is not a first time offender but if your Honour were to make that finding your Honour in my submission would nevertheless apply the well-established principles that good character carries less weight with respect to environmental offences and your Honour applied that principle in Water New South Wales v Barlow [2019] NSWLEC 30 at para 86. The case that’s often cited to support that proposition is of course Plath v Rawson (2009) 170 LGERA at 253. That is because of the importance of sentences for environmental offences achieving the purpose of general deterrence and the prevalence of such offences means that less weight is given to prior good character.

Mr Hemmings submitted that the scale of the Corporation’s activities, as shown in Mr Chaudary’s affidavit (at paragraph 5) that the nature of the offending conduct giving rise to these charges, and the nature of the charges which had given rise to the prior convictions, was such that I should not conclude that the Corporation was of bad character.
Mr Chaudary had deposed that:

5. In New South Wales, FCNSW manages almost 2,000,000 ha of native forests and over 200,000 hectares of softwood plantations. FCNSW are the stewards of both the land under its control and management as well as its resources. The commercial aspects of FCNSW's functions are only a small part of its overall responsibilities. I am aware of, and place great importance on, the serious regard that is had by FCNSW employees to forest health, fire management, and forest monitoring against biological incursions, as well as community access to opportunities for recreation and tourism.

Although the Corporation’s past non‑conviction interactions with the Prosecutor are not to be taken into account as part of the requirement to consider the Corporation’s prior criminal record, I am satisfied that they are appropriate to be considered in the broader context of whether or not the Corporation can be regarded as a good corporate citizen. This past record of lower level infringements demonstrates, I am satisfied, that, in the past, the Corporation cannot be regarded as having been a good corporate citizen. However, having regard to the extent of the Corporation’s activities, as described by Mr Chaudhary as set out above, I am satisfied that this aspect should not weigh heavily against the Corporation. Indeed, given the matters later set out as extracted from Mr Chaudhary’s affidavit concerning the steps that the Corporation is taking to avoid future transgressions (coupled with the orders for further training that the parties have agreed to is also later discussed) means I am satisfied that the Corporation is seeking to change its ways.

The likelihood of reoffending

In light of the matters set out above, and those later addressed concerning the steps being taken by the Corporation to improve its mapping performance (when coupled with the training which is to be mandated arising from these proceedings), I am satisfied that there is a low likelihood of the Corporation reoffending in the same fashion which has given rise to the charges addressed in these proceedings.

The Corporation’s prospects of rehabilitation

As set out above, I am satisfied that there is a low likelihood of the Corporation being brought before this Court again for specific offending conduct of the type for which it here stands to be sentenced. My observations concerning the Corporation's prospects for rehabilitation are, in that sense, constrained by my findings concerning the specific type of offending conduct which has given rise to these charges. In that regard (and confined to the nature of the mapping deficiencies here addressed by both punishment for the offending conduct and activities designed to prevent such conduct recurring in the future), I am satisfied that this aspect of the Corporation’s activities give rise to a reasonable assessment of a positive prospect of rehabilitation with respect to activities of that type.

Contrition and remorse

In Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51, at [80], Pepper J summarised the four types of action set out by Preston CJ in Waste Recycling as ones which may demonstrate genuine contrition and remorse in satisfaction of these requirements [citations excluded]:

(a)   first, the speed and efficiency of action rectifying the harm caused or likely to continue to be caused by the commission of the offence;
(b)   second, the voluntary reporting of the commission of the offence and any consequential environmental harm to the authorities;
(c)   third, taking action to address the cause of the offence; and
(d)   fourth, the personal appearance of corporate executives in court to give personal evidence of the Defendant’s regret and a plan of action to avoid repetition of the offence.

The Prosecutor made no detailed written submission on this point, merely noting, at paragraph 70, the fact of Mr Chaudary addressing the topic in his affidavit. The Prosecutor also made no oral submission on this point.
In his affidavit, Mr Chaudary said, in paragraphs 9 to 11:

9.   On my own behalf and that of FCNSW, I express sincere regret and remorse that FCNSW employees and contractors fail to comply with the TSL [Threatened Species Conservation Act 1995] in relation to the requirement to mark in the field of 40 m exclusion zone around a potential subterranean bat roost the prohibition against carrying out forestry operations and the use of harvesting machinery within that exclusion zone.
10.   I am aware that at the time of this affidavit there is no consensus on extent of the harm to the environment or the subterranean backrest caused by the commission of the offences.
11.   I have read a copy of the affidavit of FCNSW employee Lee Blessington affirmed 4 November 2021 (the Blessington affidavit). Reflecting the seriousness with which FCNSW treats its responsibilities for the environment, I confirm the measures FCNSW has taken in relation to exclusion zone compliance as described in paragraphs 27 to 29 of the Blessington affidavit.

In his affidavit, Mr Blessington set out, at paragraph 32 under the heading “Efforts to avoid future breaches”:

As a consequence, whilst I am satisfied that simple multiplication upscaling would be entirely inappropriate, I am satisfied that I should seek to arrive at a starting penalty for each offence, as described below, by having regard to the significant increases in the maximum penalties but not applying any mathematical precision in doing so, but doing so by undertaking an assessment of the objective factors of the Corporation's offending conduct and the Corporation's own individual circumstances (particularly those found to be in its favour arising from my consideration of s 21A(3) factors in the Sentencing Procedure Act).

The appropriate starting sentence

Introduction

In determining the appropriate starting penalty for the Defendant, I must undertake the mandated process of instinctive synthesis (Markarian v R (2005) 229 CLR 357; [2005] HCA 25) having regard to all the objective factors of the offending conduct (as earlier discussed) and the subjective factors peculiar to the Defendant that temper what might otherwise be the penalty to be imposed.
The sentence to be imposed must reflect all the relevant objective circumstances of the offence and subjective circumstances of the Defendant (Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 and Veen v The Queen (No 2)). The sentence is not to exceed what is “justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances” (Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354, citing Veen v The Queen (No 2)).
This process permits me to arrive at a starting sentence for the offence to which the appropriate discount is to be applied for the entry of the Corporation’s guilty plea.

The submissions for the Prosecutor

The Prosecutor submitted, with respect to the maximum penalty and the fact that the provision pursuant to which the Corporation had been charged was one which had recently been created and replaced one forming the basis by which offences of the type to which the Corporation has pleaded guilty might be prosecuted (and had in the past been prosecuted) (Transcript 16 December 2021, page 7, lines 13 to 22):

Still in terms of the legislation, the objective seriousness of the offences is apparent from the maximum penalty of $2 million applying to each offence. That is a very significant maximum penalty. These offences used to be charged in a number of ways. One such way was under the National Parks and Wildlife Act which contained provisions for breaching a threatened species licence in s 133 and the maximum penalty was only $222,000. On one view there’s been an increase in the maximum penalty, clearly a very significant increase, but on another view this is a completely new offence, it is a different statutory provision with a separate maximum penalty, but looking at it realistically this is a significant increase.

On the basis that the approach of regarding the former pathway to prosecution under the National Parks and Wildlife Act 1974 as being superseded by s 69SA of the Forestry Act, then the position should be that discussed in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, at [31], where the High Court said (footnote omitted):

31 The maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence. An increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased. …

With respect to having regard to sentences under the former potential pathway for prosecution, the Prosecutor submitted (Transcript 16 December 2021, page 7, lines 44 to 48):

I think what I’m trying to say is that your Honour is sentencing under a new legislative regime with a particular maximum penalty and any submission that because sentences were low under the previous regime is not a submission that should carry any weight because the statutory guidepost is an important one.

The Prosecutor continued her submissions by proposing that it would be inappropriate to look at prior cases and penalties imposed in them and adopt some proportionate analysis based on a percentage of the maximum penalty which was imposed by way of penalty in those cases (Transcript 16 December 2021, page 8, lines 27 to 29).

The submissions for the Corporation

In the course of his oral submissions concerning the level of penalty which might be imposed, Mr Hemmings first submitted that, in circumstances where there was an appropriate environmental project to which portion of what would be an otherwise financial penalty might be diverted, that did not provide any basis for the penalty to be higher in aggregation of such project funding and fine than would otherwise ordinarily be the case (Transcript 16 December 2021, page 25, lines 37 to 45). What was an appropriate penalty would be of the order of $30,000, he submitted, and that the contribution for the project to be undertaken by the Bat Society would be deducted from that amount.

Conclusion on the appropriate starting sentences

Having regard to my conclusion that the Corporation's offending conduct should be characterised as being toward, but not at, the lower end of the low range of such potential offending conduct and instinctively synthesising all the objective facts embodied in the Corporation's offending conduct and all of the Corporation’s subjective factors, I am satisfied that the appropriate penalty for each of the offences should be $120,000.
Having reached that conclusion, given that all three offences were committed as a part of a single course of conduct, it will also be appropriate to turn to address the question of totality and accumulation of the three starting penalties to reflect the overall level of criminality involved.
I accept the submission advanced by Mr Hemmings that any financial penalty should be reduced by the amount that I order be diverted to the Bat Society’s project. Given the conclusions I have reached, as later addressed, about reductions for the early guilty pleas plus the necessity to moderate the overall accumulated financial penalty, the diversion of monies to the Bat Society research project will be provided for out of what would otherwise be the appropriate total penalty for the first offence (after the discount for the guilty plea for that offence), thus reducing the residual fine for that offence. Moderation for totality and accumulation will be, as later discussed, achieved through adjustments to the penalties for the second and third offences.

The Corporation’s guilty pleas

The maximum discount on the otherwise applicable starting penalty to be afforded to a defendant who has pleaded guilty is 25% (R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383). The full measure of this conventionally maximum discount is only afforded to those defendants who enter a guilty plea at the earliest opportunity.
In these proceedings, there is no contest between the parties as to what discount (25%) the Corporation should be entitled because the guilty pleas were entered at the earliest opportunity.
The appropriate sentences therefore each require adjustment to $90,000.

Totality and accumulation

Introduction

All three of the offences to which the Corporation has pleaded guilty arose out of the same course of conduct, the offending conduct being temporally and geographically contemporaneous. As a consequence, although I have set out the appropriate starting penalty I have determined is appropriate for each offence, it is necessary to consider the extent to which the principles of totality should result in some further amelioration of the total penalty to be applied to the Corporation to reflect this commonality.
I have earlier set out the starting sentence and the guilty plea discount to be applied for the offending conduct of the Corporation for each of the three offences. However, in order to determine what should be the final penalty imposed for each offence, it is necessary that I consider what further moderation should be applied to those penalties to reflect the fact that the offences all arose out of the same general course of offending conduct. This requires consideration of how the penalties should be accumulated to reflect the totality of the Corporation’s offending conduct (in lieu of treating, separately, the punishment for each of the offences).

The Prosecutor's position

With respect to consideration of totality and accumulation, the Prosecutor addressed, in paragraph 74 of its written submissions, how it was said I should regard the interrelationship of the three elements of offending conduct. The paragraph was in the following terms:

74. Breaches 2 and 3 overlap in that they arose from the same harvesting operation, but the criminality differs to some degree in that they relate to two different prohibitions in the licence, one charge is directed to the clearing of trees (23) and the other charge relates to the use of the machinery, which caused additional harm (to vegetation) and potential risks to the species (by way of noise and vibration). They are separate activities regulated by the Licence, but the prosecution accepts that there is substantial overlap between these two charges. Breach 1 is of a distinctive nature as it pertains to the failure to mark the boundary of the environmentally sensitive area in the field, being the ultimate cause of the breaches.

After an exchange I had with the Prosecutor concerning how I should approach sentencing the Corporation, given that the three offences appeared to arise from a common course of conduct, the Prosecutor acknowledged the appropriateness of me applying the principle of totality, but said (Transcript 16 December 2021, page 11, lines 33 to 38):

It’s merely that there was additional criminality warranting some additional punishment occasioned by the failure to ensure after identifying that there was present a disused mineshaft, and that it did meet the definition of a subterranean bat roost, the failure to ensure despite some steps being taken by the defendant that harvesting didn’t take place, and despite knowledge of the licence requirements and the existence of the bat roost.

The Corporation’s position

Mr Hemmings agreed that it would be appropriate to have regard to principles of totality and accumulation because the elements of the three offences all arose out of one course of offending conduct (Transcript 16 December 2021, lines 33 to 37).

Consideration

In this context, I am satisfied that the element of the Corporation’s offending conduct which gave rise to the charge that the Corporation failed to mark the boundary of an environmentally sensitive area as an exclusion zone should be the charge for which the starting penalty should remain at the level I have earlier determined. However, given that all three charges arose out of a single course of conduct, it is appropriate to moderate, to some extent, the penalty for each of the other charges. Having determined which of the penalties should not be moderated, I do not consider it necessary to seek to rank in seriousness the Corporation’s offending conduct giving rise to the other two charges.
However, for the purpose of this element of the sentencing exercise which I am undertaking, I am satisfied that the penalty for the offence of carrying out a specified “Forestry Activity” in an exclusion zone should be reduced by $15,000 to $75,000 and the penalty for using harvesting machinery in an exclusion zone should be reduced by $25,000 to $65,000.
As a consequence of these moderations of starting penalty to reflect the fact that the Corporation’s offending arose out of a single course of conduct, the total overall penalty to be imposed on the Corporation is $230,000 (before deduction of the contribution to the Bat Society project).

A publication order

During the course of the hearing, I raised with the Prosecutor the nature of the media in which the Prosecutor proposed that the Corporation should provide public notice of the offences to which it has pleaded guilty. It is not necessary to set out the terms of that discussion; it is sufficient to note that the Prosecutor’s Amended Final Orders require that the notice to be published pursuant to an order made under s 13.25(1)(a) and (b) of the Biodiversity Conservation Act should require publication in the Australian Financial Review and in the South Coast Register and Bay Post/Moruya Examiner - two publications which circulate in the communities in the region where the Dampier State Forest is located - as well as in the Australian Forests & Timber News and Australasian Timber Magazine - two trade publications.
The terms of the proposed publication order were agreed (incorporating two minor changes to the original draft) after discussion between me and the parties. However, I have also included mention of the funding to be provided to the Australasian Bat Society Inc’s research project to reflect the total financial outcome imposed on the Corporation.
The terms of the notice are reproduced in Annexure B to this decision.

Diversion of portion of the penalty to a research project

The Prosecutor also proposed that portion of the total amount that was to be imposed on the Corporation as a penalty should be diverted to provide financial support to research being undertaken by the Australasian Bat Society Inc. The diversion of such an amount for such a purpose is permitted by s 13.25(1)(e) of the Biodiversity Conservation Act. No specific amount was proposed by the Prosecutor as appropriate for such diversion, the Prosecutor’s written submissions, at paragraphs 79 and 80, saying:

79. The prosecutor seeks an order pursuant to section 13.25(e) of the BC Act for payment of a specified amount into to the Australasian Bat Society to support the Society’s project assessing the effects of a 2019/20 mega fires on “a key roost of the eastern horseshoe bat on the south coast of NSW” which comprises the present roost. The Project aims to provide more detailed information about the site, including an estimate of the number of bats that use the site, and to identify whether other species are present.
80. The Project proposal includes a cost schedule setting out $15,000 in likely costs, although it notes that “the survey effort is scalable in that if additional funds were available, it would enable a greater number of visits to the sites to assess numbers. The number of bats in mines can vary on a nightly and seasonal basis and hence the larger the number of sample nights the greater the understanding of the patterns of occupancy and the variability, which influences pre- and post-fire assessments.” On this basis, the prosecutor submits that the specified amount of $15,000 would represent the minimum appropriate amount to be ordered, and that the Court should consider ordering a higher amount to permit the Australasian Bat Society to properly carry out the Project.

The Corporation did not oppose the making of such a diversionary order to support the Society’s project. Under the circumstances, I am satisfied that it is appropriate to order a greater amount than the basic project cost (given that the project is able to be increased in scale), doing so to widen the scope of work concerning this species. I will therefore order that $45,000 should be diverted to support the Society’s project.

The potential for training orders

During the course of the hearing, I raised with the advocates the question of whether I should contemplate making an order pursuant to s 13.25(1)(d) of the Biodiversity Conservation Act requiring that nominated persons or entities should be required to undertake training which could have a positive preventative effect in contributing to lowering the likelihood that the offending conduct might be repeated in the future. I indicated that it would be appropriate for the parties to make submissions on:

whether I should make such an order;

if I was to make such an order, at what persons should the order be directed; and

what should be the mandated nature of the training if such an order was to be made.

As the parties had not contemplated, in their preparation for the sentencing hearing, the potential for me contemplating making such an order, let alone matters of detail outlined above should such an order be made, the parties requested that they have the opportunity to consider the matters arising and confer to see whether there was any potential for an agreed outcome for such a training requirement order.
I accepted that this was an appropriate course of action and, given the sentencing hearing was taking place at a time which was only shortly before the December‑January Law Vacation, it was appropriate to give the parties until the commencement of the 2023 Law Term to provide me with details of any agreement which might be reached or, if no such agreement was reached, submissions that each party might wish to make on the appropriateness of such an order and, if made, what might be its terms.
The parties subsequently requested (and were granted) an extension of time until 18 February 2022 to permit further discussions between the parties on this issue.
On 18 February 2022, the parties advised that they had reached agreement that such an order should be made and provided the terms of proposed Consent Orders to give effect to this. The terms of the proposed agreed orders concerning training are:

1 Pursuant to section 13.25(1)(d) of the Biodiversity Conservation Act 2016 (the BC Act), Forestry Corporation NSW (FCNSW) is to, within 30 days from the date of these orders, engage a Registered Training Organisation (RTO) to undertake an audit to:
(a)   analyse the skills, functions and roles performed by “authorised persons” (authorised persons) as defined in Protocol 39 of the Coastal Integrated Forestry Operations Approval (CIFOA) to determine the experience, qualifications and competency level required to identify operational boundaries as required in Condition 115 of the CIFOA and carry out field mapping as required in Condition 117 of the CIFOA;
(b)   assess the required experience, qualifications and competency level determined under Order 1(a) against the Australian Qualification Framework (AQF) to determine the appropriate AQF level and AQF level criteria for authorised persons carrying the identification of operational boundaries and field mapping as set out in Order 1(a) above;
(c)   assess all training provided to authorised persons regarding the identification of operational boundaries and field mapping under Order (1)(a) above to determine if this training is fit for purpose and likely to result authorised persons meeting the appropriate AQF level as determined under Order (1)(b) above; and
(d)   provide FCNSW with a written report outlining the outcomes of the audit and making appropriate recommendations arising from Orders 1(a)-(c) above within 90 days of engagement.
2   Within 60 days of the date of FCNSW being provided with the report from the RTO under Order 1(d), FCNSW is to provide the EPA with a written report outlining the outcomes and any recommendations made by the RTO in respect of Orders 1(a)-(d) above, including how the recommendations (if any) will be implemented by FCNSW.
3 Pursuant to section 13.25(1)(g) of the BC Act, FCNSW is to, within 12 months of the date that it provides the report required under Order 2, implement any recommendations made by the RTO in respect of Orders 1(a)-(d) above and provide the EPA with a written report confirming the implementation of the recommendations made by the RTO.

I am satisfied that, as I foreshadowed to the parties at the sentencing hearing might be the position, it is appropriate to make such an order. I have also considered the terms of the orders agreed to by the parties to impose such a requirement in the fashion set out above. I am satisfied that the terms of the proposed training audit requirements, and process to address any deficiencies identified embodied in the agreed position advanced on behalf of the parties, are appropriate and should be incorporated in the orders finalising these proceedings. I have reached this conclusion not merely because the outcome proposed is an agreed one, but also because its terms seem to me to be ones appropriate to contributing to the potential for a prophylactic outcome reducing the likelihood in the future of the potential for offending conduct of the nature giving rise to the charges in these proceedings.

I am also satisfied that the novelty necessarily inherent in the making of such an order may have a general deterrent effect beyond merely the activities of the Defendant, given that the power to make such orders is also replicated in s 250(1)(f) and (g) of the Protection of the Environment Operations Act 1997 (the POEO Act), a provision in Pt 8.3 of that legislation. It is to be noted that the additional orders’ provisions in Pt 8.3 of the POEO Act have been expressly imported by reference into the environmental law enforcement provisions of a range of other statutes regulating potentially environmentally impacting activities in New South Wales.
As a consequence, I have concluded that it is appropriate to make such an order and that it is also appropriate that the order to be made should be in the terms agreed between the Prosecutor and the Corporation.
It is, however, to be noted that the requirement to give effect to the training provided for in the order is, as to its cost, not a matter to be taken into account in any offsetting fashion in my instinctive synthesis of the appropriate monetary penalty to be imposed (see, by analogy, Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9 at [58] to [69]).

Costs issues

Introduction

Toward the end of the first day's hearing, Mr Hemmings sought to tender a letter from the Prosecutor to the Corporation. The purpose of the tender was to permit him to make a submission concerning the applicability of Environment Protection Authority v Barnes (2006) NSWCCA 246 (EPA v Barnes) concerning the extent of the costs of liability that the Corporation would face arising from an order pursuant to s 257G of the Criminal Procedure Act and how that should impact on my assessment of the penalties to be imposed on the Corporation in these proceedings.
The Prosecutor objected to the tender of the letter on the basis that it was one that had been sent on a “without prejudice” basis. Although I had been provided with a copy of the letter, I placed it facedown without examining it. After some further discussion as to whether or not the Prosecutor would concede, for the purposes of the submission, which Mr Hemmings was seeking to advance, that the Prosecutor's costs were “substantial”, it was not possible for instructions to be obtained to permit such a concession to be made on behalf of the Prosecutor, even in those limited terms (without the tender of the “without prejudice” letter being effected). As a consequence, the matter was adjourned until the following morning, to enable the Prosecutor to seek further instructions on the question of costs.
When the matter resumed the following morning, the objection to the tender of the letter was maintained on the basis of its “without prejudice” nature. As a consequence, the letter was not admitted and was returned by me without examination.
This resulted in the various potential issues relating to costs being left to me to consider without any detailed information (whether descriptive or numerical being irrelevant) on the extent of the Prosecutor's costs in the proceedings.
I now turn to various costs‑related matters requiring to be addressed.

Environment Protection Authority v Barnes

Whilst Environment Protection Authority v Barnes (2006) NSWCCA 246 is often advanced as providing a basis for taking the liability of a defendant to pay a prosecutor’s costs into account when setting a penalty, a reading of that decision makes it clear that, there, the question arose in the context of consideration of that defendant’s capacity to pay. That clearly does not arise here as the Corporation is a State‑owned trading entity. There is, therefore, no relevant “downward pressure” to be applied to the appropriate penalties as a result of the Corporation being required to pay the Prosecutor’s costs.

A moiety order

Introduction

Section 122 of the Fines Act provides the basis upon which a Prosecutor can be awarded a moiety (50%) of any fine which is imposed on a defendant as punishment for offending conduct. In its written submissions, the Prosecutor sought that a moiety of the overall penalty to be imposed on the Corporation (after deduction of the amount diverted to the Society’s research project) be paid to the Prosecutor.

The Prosecutor’s submissions

The Prosecutor's written submissions concerning the proposal that I should make a moiety order in its favour was set out at paragraphs 83 and 84 in the following terms:

83. Where the statutory requirements of the Fines Act are satisfied, the Court has discretion to order that a moiety is paid and this discretion can be exercised despite separate provisions for the payment of investigations costs within the statutory regime. The Land and Environment Court has previously made orders for moiety to the EPA in prosecutions. The Court has accepted that moiety would compensate the Prosecutor and support ongoing environmental law enforcement activities rather than provide a “windfall gain”.
84. In this case, the EPA seeks an order for the reimbursement of specific investigation expenses under s 13.23 BC Act. However, these expenses do not include the significant time spent by EPA officers investigating these offences, including the time spent conducting interviews, issuing and reviewing responses to statutory notices, and attending Dampier State Forest. In addition, orders for the EPA's professional costs do not generally fully compensate the EPA; only a proportion of professional costs is likely to be recovered. An order for moiety would therefore not represent a “windfall” or “benefit” the EPA. The EPA seeks an order for moiety to compensate the EPA and to support the sustaining of environmental law enforcement activities.

The Corporation's submissions

During the course of his oral submissions, Mr Hemmings opposed me making an order that the Prosecutor receive a moiety of the fine to be imposed on the Corporation. He submitted that, in circumstances where the Prosecutor's costs and the Prosecutor’s investigation costs were to be required to be paid by the Corporation, the Prosecutor should not be allowed to receive any further financial benefit. He submitted that funding for the Prosecutor, as a general proposition, should be provided through the conventional budgetary processes rather than the Prosecutor obtaining additional funding from its pursuit of the Corporation in circumstances where its costs of doing so were appropriately compensated by the specific compensatory costs orders to be made.

Consideration

At the time Mr Hemmings made the above‑noted oral submission, I drew his attention to the approach which had been taken by Preston CJ in Secretary, Department of Planning and Environment v Boggabri Coal [2014] NSWLEC 154 (and, subsequently, discussion by me) that a moiety order pursuant to s 122 of the Fines Act might not only be regarded as appropriate for the purposes of compensating a prosecutor for expenses incurred in the prosecution of the specific offending conduct then being dealt with.
In Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114, Preston CJ discussed, between [102] and [111], the origins of, and broad operative scope for, orders awarding a moiety to a prosecutor pursuant to s 122 of the Fines Act.
It is sufficient to note that the discretion to make such an order is broad and has frequently been exercised in this Court.
In Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2, at [134] to [158], I also explained the history of the provision and proposed that a broader view of such a moiety order might be appropriate to be made to provide additional funding to the Prosecutor to support its environmental protection activities (including, potentially, further environmental law enforcement activities). In Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54, at [158] and [159], I said:

158. In my judgment in Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2 (“AGL”), at [134]-[157], I discussed the history and policy issues arising for consideration where an application is made by a prosecutor for an order pursuant to s 122(2) of the Fines Act. One circumstance discussed as justifying such a direction is when a prosecutor does not have an independent statutory right to recovery of investigation costs (as opposed to litigation costs). Such is the position here applying.
159. Under these circumstances, although a moiety direction is likely to exceed (potentially significantly) the Prosecutor’s investigation costs, I am also satisfied that any such surplus would be an additional payment which is likely to support the sustaining, on a more general basis, of environmental law enforcement activities of the prosecuting authority (AGL at [158]).

I am satisfied that the making of such an order to provide additional funding for the activities of the Prosecutor in addition to the Prosecutor’s conventional budgetary funding is entirely appropriate. I am satisfied that making such an order is likely to support the sustaining, on a more general basis, of environmental law enforcement activities of the prosecuting authority.
Despite the submission on behalf of the Corporation that I should not make such an order, I propose to do so.

A general costs order

As earlier noted, ss 257B and 257G of the Criminal Procedure Act operate to permit me to order that the Corporation is to pay the Prosecutor's costs of these proceedings. There is no agreement as to what might be a costs amount to be specified in such a costs order
It is, therefore, appropriate simply to order that the Corporation pay the Prosecutor’s costs as agreed or assessed.

The Prosecutor’s investigation costs

At paragraph 81 of the Prosecutor’s written submissions, the Prosecutor noted that it sought an order pursuant to s 13.23 of the Biodiversity Conservation Act for its reasonably incurred costs and expenses during the investigation of the offence, being the travel costs of conducting investigations in the Dampier State Forest in May and December 2019.
For me to make an order that the Corporation pay the Prosecutor's investigation costs, the Prosecutor must advise me of the quantum of those costs.
The parties have reached agreement on the amount to be ordered for this purpose as being $8,000 (Transcript 16 December 2021, page 14, line 10).

Orders

In Matter No 119558 of 2021, the orders of the Court are:

The Forestry Corporation of NSW (the Defendant) is convicted of an offence pursuant to s 69SA(1) of the Forestry Act2012 in that the Defendant committed a breach of condition 5.1E(b)(ii) of the Defendant’s Threatened Species Licence, between about 4 April 2019 and about 2 May 2019, at or near the Dampier State Forest, by failing to mark the boundary of an environmentally sensitive area as an exclusion zone;

Pursuant to s 13.25(1)(e) of the Biodiversity Conservation Act 2016 (NSW), the Defendant is to pay the amount of $45,000 to the Australasian Bat Society Inc, within 28 days of this order, for the purposes of the project titled “Preliminary Assessment of the Impacts of a 2019/2020 Wildfire on a Key Roost of the Eastern Horseshoe Bat on the South Coast of NSW” as described in Annexure B to these orders (the Project).

For the period of 36 months from the date of these orders public references by the Defendant to its contribution to the Project are to be accompanied by the statement that:

Contribution by Forestry Corporation NSW to the “Preliminary Assessment of the Impacts of a 2019/2020 Wildfire on a Key Roost of the Eastern Horseshoe Bat on the South Coast of NSW” Project is part of a penalty imposed by the Land and Environment Court on 15 June 2022 after Forestry Corporation NSW was prosecuted by the NSW Environment Protection Authority and convicted of three offences against s 69SA(1) of the Forestry Act 2012 in that conditions of an integrated forestry operations approval were contravened.

The Defendant is fined $45,000; and

Pursuant to s 122 of the Fines Act 1996, the Defendant is to pay the Prosecutor a moiety of the fine in order (4).

In Matter No 119559 of 2021, the orders of the Court are:

The Forestry Corporation of NSW (the Defendant) is convicted of an offence pursuant to s 69SA(1) of the Forestry Act 2012, in that the Defendant committed a breach of condition 5.1(a2)(i) of the Defendant’s Threatened Species Licence, on about 2 May 2019 at or near the Dampier State Forest, as a specified “Forestry Activity” was carried out in an exclusion zone; and

The Defendant is fined $75,000; and

Pursuant to s 122 of the Fines Act 1996, the Defendant is to pay the Prosecutor a moiety of the fine in order (2).

In Matter No 119560 of 2021, the orders of the Court are:

The Forestry Corporation of NSW (the Defendant) is convicted of an offence pursuant to s 69SA(1) of the Forestry Act 2012, in that the Defendant committed a breach of condition 5.1(a2)(iii) of the Defendant’s Threatened Species Licence, on about 2 May 2019 at or near the Dampier State Forest, as harvesting machinery was used in an exclusion zone; and

The Defendant is fined $65,000; and

Pursuant to s 122 of the Fines Act 1996, the Defendant is to pay the Prosecutor a moiety of the fine in order (2).

In all matters, the orders of the Court are:

Pursuant to s 257G of the Criminal Procedure Act 1986, the Forestry Corporation of NSW (the Defendant) is ordered to pay the Prosecutor’s costs of the proceedings as agreed or assessed;

Pursuant to s 13.23 of the Biodiversity Conservation Act 2016 (NSW), the Defendant is to pay the Environment Protection Authority’s reasonably incurred costs and expenses incurred during the investigation of the offences in the amount of $8,000;

Pursuant to s 13.25(1)(a) and 13.25(1)(b) of the Biodiversity Conservation Act 2016 (NSW), the Defendant, at its expense, is to:

within 28 days of the date of this order, cause a notice of a minimum size as near as practicable to 180cm2 to be published in print and digital editions within the first 12 pages of the Australian Financial Review, The South Coast Register, The Bay Post/Moruya Examiner, the Australian Forests & Timber News and the Australasian Timber Magazine with the text of such notice and the Forestry Corporation logo (of reasonable size) to be as set out in Annexure C to these orders; and

within 42 days of the date of this order, provide to the Environment Protection Authority, a copy of the entire page of each of the Australian Financial Review, The South Coast Register, The Bay Post/Moruya Examiner, the Australian Forests & Timber News and the Australasian Timber Magazine on which the notice was published in accordance with paragraph (3)(a) above.

By consent, the Court makes the following further orders:

Pursuant to s 13.25(1)(d) of the Biodiversity Conservation Act 2016 (the BC Act), Forestry Corporation NSW (FCNSW) is to, within 30 days from the date of these orders, engage a Registered Training Organisation (RTO) to undertake an audit to:

analyse the skills, functions and roles performed by “authorised persons” (authorised persons) as defined in Protocol 39 of the Coastal Integrated Forestry Operations Approval (CIFOA) to determine the experience, qualifications and competency level required to identify operational boundaries as required in Condition 115 of the CIFOA and carry out field mapping as required in Condition 117 of the CIFOA;

assess the required experience, qualifications and competency level determined under Order 1(a) against the Australian Qualification Framework (AQF) to determine the appropriate AQF level and AQF level criteria for authorised persons carrying the identification of operational boundaries and field mapping as set out in Order 1(a) above;

assess all training provided to authorised persons regarding the identification of operational boundaries and field mapping under Order (1)(a) above to determine if this training is fit for purpose and likely to result authorised persons meeting the appropriate AQF level as determined under Order (1)(b) above; and

provide FCNSW with a written report outlining the outcomes of the audit and making appropriate recommendations arising from Orders 1(a)-(c) above within 90 days of engagement.

Within 60 days of the date of FCNSW being provided with the report from the RTO under Order 1(d), FCNSW is to provide the EPA with a written report outlining the outcomes and any recommendations made by the RTO in respect of Orders 1(a)-(d) above, including how the recommendations (if any) will be implemented by FCNSW.

Pursuant to s 13.25(1)(g) of the BC Act, FCNSW is to, within 12 months of the date that it provides the report required under Order 2, implement any recommendations made by the RTO in respect of Orders 1(a)-(d) above and provide the EPA with a written report confirming the implementation of the recommendations made by the RTO.

**********

Annexure A

Annexure B

Annexure B (185113, pdf)

Annexure C

ANNEXURE "C"

The Forestry Corporation of New South Wales convicted of offences in relation to harvesting operations in Dampier State Forest in 2019

Forestry Corporation NSW has been convicted in the Land and Environment Court for an offence under the Forestry Act 2012 (NSW) for breaching three conditions of its integrated forestry operations approval.

Forestry Corporation NSW breached its approval by failing to carry out its licensed activities in Compartment 3133 of Dampier State Forest, near Bodalla. During the harvesting operations, on 2 May 2019, the Forestry Corporation failed to mark an environmentally sensitive area in the field. As a result, trees were felled within and around the exclusion zone for the subterranean bat roost for the Eastern Horseshoe Bat. The harvesting operations did not cause actual harm to the subterranean bat roost, but likely caused minor harm to any Eastern Horseshoe Bats roosting at the time. There was also a risk of actual harm in the circumstances of this incident.

The prosecution was brought by the NSW Environment Protection Authority (the EPA). The Forestry Corporation cooperated with the EPA during the investigation and pleaded guilty to the offences. The Forestry Corporation has been fined a total of $185,000 and ordered to pay an additional amount of $45,000 to the Australasian Bat Society Inc to undertake research into the impacts of a 2019/2020 wildfire on a key roost of the Eastern Horseshoe Bat on the South Coast. The Forestry Corporation has also agreed to pay the EPA’s legal costs as agreed or assessed. This notice was placed by order of the Land and Environment Court of NSW and was paid for by the Forestry Corporation.

Decision last updated: 23 June 2022

Medium Neutral Citation:	Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 75
Hearing dates:	16 and 17 December 2021. Consent orders pursuant to s 13.25(1)(d) of the Biodiversity Conservation Act 2016 filed 18 February 2022
Date of orders:	22 June 2022
Decision date:	22 June 2022
Jurisdiction:	Class 5
Before:	Moore J
Decision:	See orders at [159] to [163]
Catchwords:	SENTENCE - three charges of breaching s 69SA(1) of the Forestry Act 2012 - pleas of guilty by Defendant - agreed facts for sentencing purposes - no potential aggravating factors - consideration of matters mandated by the Biodiversity Conservation Act 2016 - consideration of Defendant’s subjective factors - extent of contrition and remorse - extent of likelihood of reoffending - other subjective factors favourable to Defendant - need for general deterrence - appropriate starting penalty toward (but not at) the low end of the low range for such conduct - penalties of $120,000 for each offence - plea of guilty entered at earliest opportunity - discount of 25% on starting penalties appropriate TOTALITY AND ACCUMULATION - offences all arising out of same course of conduct - penalties for second and third offences moderated ADDITIONAL ORDERS - publication order appropriate to be made - minor changes to Prosecutor’s draft - publication order made - proposals for order requiring training of forest‑harvesting employers and contractors in new mapping technology - consent orders settled by the parties for mapping technology training - training orders made by consent
Legislation Cited:	Biodiversity Conservation Act 2016, ss 13.12, 13.23 and 13.25 Criminal Procedure Act 1986, ss 257B and 257G Crimes Sentencing Procedure Act 1999, ss 3, 21A, 22 and 23 Forestry Act 2012, ss 69SA(1) and 69SB Protection of the Environment Operations Act 1997, Pt 8.3
Cases Cited:	Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Caralis v Smyth (1988) 65 LGRA 303 Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2017] NSWLEC 132 Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185 Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54 Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 Environment Protection Authority v Barnes (2006) NSWCCA 246 Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 Environment Protection Authority v Waste Recycling and Processing Company (2006) 148 LGERA 299; [2006] NSWLEC 419 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Markarian v R (2005) 229 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v O’Neill (1979) 2 NSWLR 582 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383 Secretary, Department of Planning, Industry and Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Walden v Hensler (1987)163 CLR 561; [1987] HCA 54
Category:	Principal judgment
Parties:	Environment Protection Authority (Prosecutor) Forestry Corporation of NSW (Defendant)
Representation:	Counsel: Ms G Wright SC (Prosecutor) Mr I Hemmings SC/Ms J McKelvey, barrister (Defendant) Solicitors: Environment Protection Authority (Prosecutor) Forestry Corporation of NSW (Defendant)
File Number(s):	119558, 119559 and 119560 of 2021
Publication restriction:	No

Tab	Description
1.	Map of compartments 3131, 3132 and 3133 of the Dampier Forest
2.	Licence (version in force at the time of the three offences)
3.	Harvest Plan dated 24 May 2017
4.	Operational Map (Version 3) dated 1 March 2019
5.	Operational Map (Version 4) dated 6 May 2019
6.	Photographs of the EPA inspection of 28 May 2019
7.	Photographs of the EPA inspection of 4 December 2019
8.	Maps of the exclusion zone which was harvested on 2 May 2019 in compartment 3133